The Chairman: With this we may discuss the following amendments: No. 144, in page 3, line 3, leave out 'representative' and insert—

'reflective.'

No. 145, in page 3, line 3, at end insert—

', including in terms of gender and ethnicity.'

No. 90, in page 3, line 3, at end add—

'( ) In appointing persons to be lay members, the First Minister and deputy First Minister must so far as possible secure that the lay members have a sophisticated understanding of legal issues as well as proven experience in selection procedure.'.

9.45 am

Mr. Blunt: Earlier, the Minister alluded to what he thought were the reasons behind the amendment. He suggested that the amendment was meant to remove the duty in the Bill for the First Minister and Deputy First Minister to ensure, as far as possible, that the lay members, taken together, are representative of the community in Northern Ireland. I want that duty removed from the Bill for reasons opposite to those that the Minister was imputing to me earlier.

In an earlier debate, the hon. Member for Newry and Armagh (Mr. Mallon) drew attention to the fact that the judiciary in Northern Ireland is largely

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Unionist and almost entirely male. That point was also made by the hon. Member for North Down. The judiciary in Northern Ireland is a small pool from which to make appointments. Later, we shall discuss the amendment tabled by the hon. Member for Newry and Armagh, which is designed to make the judiciary more reflective of the community. I think that everyone would agree that that would be a desirable outcome, as long as appointments to posts in the judiciary remained subject to the primary test of merit.

If the community is to have confidence in the Judicial Appointments Commission, we need to give the First Minister and Deputy First Minister greater freedom in determining the make-up of the lay membership. The commission will have five lay members, five judicial members and two members from the professions. The judiciary is largely male and largely Unionist in outlook. I do not know how that breaks down, or whether the figures are available to the public, but let us take it as a working assumption. In much of the nationalist community in Northern Ireland, that is believed to be the case. However, some of us know of members of the judiciary who are Catholic and therefore probably nationalist, although I realise that those two things do not always coincide.

If, because of the pool from which selections are made, the judicial members of the Judicial Appointments Commission were inevitably male Unionists, there would be a proper case for the First Minister and Deputy First Minister to attempt to correct that through their choice of lay members. There is a discipline on the First Minister and the Deputy First Minister, because they must come to an agreement about whom they will propose as lay members. We should not place on them a duty, in choosing the lay members, to ensure that, taken together, they are representative of the community.

The Deputy First Minister might say to the First Minister, ''The Judicial Appointments Commission is Unionist and male. Therefore, three or four of the posts on the commission should be taken by female nationalists.'' The First Minister might refuse and demand the appointment of people in his own image, but there might also be a proper discussion at that point about correcting the balance on the commission in order to broaden confidence in the community about the make-up and representativeness of the commission. That should be a matter for discussion between the First Minister and the Deputy First Minister, and no duty should be placed on them with respect to those appointments.

Mr. Seamus Mallon (Newry and Armagh) rose—

Mr. Browne rose—

Mr. Blunt: If the Minister will forgive me, I shall give way to the hon. Member for Newry and Armagh, as I am particularly interested in what he has to say about this.

Mr. Mallon: The hon. Gentleman has raised a crucial point about representativeness a point to which we are likely to return in connection with various parts of the Bill. He put his finger on part of the problem: is responsibility for representativeness simply to rest on the shoulders of the First Minister and Deputy First

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Minister? Should not that duty and requirement for representativeness apply also to the appointment of judicial members, members of the Bar and members of solicitor's organisations? That is the difficulty. The roles of First Minister and Deputy First Minister should not be to put patches on that which has already failed to deliver. The legislation must ensure that representativeness is also reflected in the appointments made by the Lord Chief Justice, the Bar and the Law Society. The hon. Gentleman made his case well: if that principle of representativeness is not applied to other appointments, the First Minister and Deputy First Minister will be faced with an elastoplast job, which is, in fact, impossible.

Mr. Blunt: I listened with care to the intervention of the hon. Member for Newry and Armagh, but he must appreciate just how small the judiciary in Northern Ireland is and, therefore, just how difficult it will be to achieve those aims.

That is especially true given our starting point. No one is proposing that the whole judiciary should be sacked and that we should start again to produce a judiciary that is representative according to Equality Commission legislation. I cannot imagine that anyone would suggest that the judiciary should be selected on anything other than merit. Merit must be the first qualification for judicial appointment. Of course, merit includes reputation and proven integrity, so that a judgment of merit will include a judgment about the role that judges are expected to play as impartial arbiters of justice.

Mr. Browne: I was careful not to intervene until the hon. Gentleman had fully answered the point made by my hon. Friend the Member for Newry and Armagh, because I want to invite him to move his thinking on to another matter.

Those who read the record of our proceedings may find that there is an apparent contradiction between the contribution from the hon. Member for Reigate in relation to the previous amendment that we considered, when he talked about putting strictures on the activity of the First Minister and Deputy First Minister in relation to appointments to the commission, and the view that he is now taking that they should be given a liberal degree of latitude in dealing with appointments to ensure representativeness. As I understood his earlier argument, it was that there would be an opacity and lack of accountability in their discussions. Will he explain to the Committee where the clarity and accountability lie in his current proposals, because I may want to pray in aid what he says when we return to the other issue?

Mr. Blunt: This point goes to the kernel of the issues surrounding the devolution of justice and, indeed, the devolution of the whole of government in Northern Ireland, the peculiar circumstances in Northern Ireland and the peculiar way in which we have had to draw up all the devolved legislation since the Belfast agreement, creating portfolios for the First Minister and Deputy First Minister. Throughout all the legislation there are references to the First Minister and Deputy First Minister acting jointly. That phrase appears countless times in all the legislation for a

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precise reason: the necessity to secure cross-community agreement in order to give people confidence in the institutions. We have to decide how much authority and responsibility we should devolve to the First Minister and Deputy First Minister, and how much we shall tie their hands.

Amendment No. 7, in dealing with the issue of sentences for prisoners, would have contributed to maintaining confidence in the system of devolved government—in this instance, a Judicial Appointments Commission—thereby reassuring the community in Northern Ireland and sustaining support for the Belfast agreement and the settlement. The Minister may disagree, but that is why I pressed that amendment to a Division.

How will we sustain wider confidence in the Judicial Appointments Commission? The amendment would remove the restriction from the First Minister and the Deputy First Minister to make solely the lay members representative. The Committee has decided that those members need no legal qualifications. The amendment would allow the First Minister and the Deputy First Minister, if they could come to an agreement, to make the Judicial Appointments Commission more representative as a whole, rather than simply ensuring that lay members were representative. If only the lay members must be representative, it will be more difficult for the First Minister and Deputy First Minister to make the whole commission representative of the community. That is the discretion that I seek to give the First Minister and Deputy First Minister.

Mr. Browne: I understood the hon. Gentleman's argument up to now to be that we needed to liberalise this part of the Bill and remove restrictions to create over-representation in certain areas, in order to correct deficiencies in the representativeness or reflectiveness of the judiciary. I no longer understand his argument. I thought that he was suggesting that we could instate, in numerical terms, an over-representation of nationalist women on the commission, for example, to achieve some discriminatory appointment for judges.

Mr. Blunt: I am afraid that the Minister has misunderstood the argument. I shall try to phrase the issues as clearly as I can.

The Judicial Appointments Commission, as a whole, should be as representative of the community as possible, but the judicial members of the commission—as with the judiciary itself—will have to be appointed primarily on merit. They would have been selected on merit to be members of the judiciary; indeed, that is the overriding qualification. Inevitably, that provides the potential for that part of the commission to be drawn from one particular part of the community and, at the moment, it is highly likely that those members will be male Unionists. Most of the judiciary is male in Northern Ireland and most of them are Unionists—or so it is perceived, although no one actually knows whether that is the case. That is the situation as it stands, but that position could easily change.